Commentary: When to police political behavior

The headlines bring the accidentally colliding tale of two governors and, with it, a valuable debate about the proper role — and proper limits — of criminal law in policing political behavior.

Exhibit A is the questionable — “sketchy” was the apt word used by, of all people, Democratic strategist David Axelrod — indictment of Texas Republican Gov. Rick Perry.

Exhibit B, a responsible contrast to the Perry mess, is the ongoing federal trial of former Virginia Gov. Bob McDonnell, also a Republican.

The difference between these two prosecutions is the difference between the appropriate — indeed, the necessary — function of criminal law in punishing political corruption and the risk of prosecutors wielding the threat of jail time in cases where voters should be free to judge for themselves the behavior of elected officials.

It is the difference, too, between hardball politics practiced in the light of day and the kind of furtive self-dealing that requires a grand jury and subpoena power to unearth effectively.

Start with Perry. Rosemary Lehmberg, the Travis County district attorney, disgraced herself and her office when she was arrested last year for astonishingly drunk driving and was videotaped abusing the arresting officers. Perry demanded that Lehmberg resign and, when she balked, threatened and executed a veto of state funding for her office’s ethics unit.

There are wrinkles here that could legitimately pique a prosecutor’s interest. Lehmberg is not only a Democrat but, under the state’s wacky arrangement, is responsible for investigating state-level public corruption cases.

At the time of Lehmberg’s arrest, her office was investigating the Cancer Prevention and Research Institute of Texas, a state agency that disbursed research funds, including to major Perry donors. Last year, the office indicted a top agency official for awarding an $11 million grant to a Dallas biotechnology firm without undertaking required reviews.

Then came a court-appointed special prosecutor with what looks like a shockingly skimpy indictment of Perry. He is charged with coercion of a public official for threatening to strip Lehmberg’s funding if she did not resign and misusing government property by exercising his veto authority when she failed to comply.

Consider: Politicians don’t generally issue news releases announcing their supposed “crimes.” Perry has line-item veto power. Certainly, he couldn’t take a bribe in return for using it. But absent evidence of such corruption, where is the (constitutionally required) warning to Perry that he was treading into criminal territory?

The McDonnell trial presents a different scenario, one of secret use of public office to reap private benefit. Here, too, prosecutors were undoubtedly aggressive in pursuing a criminal case against the former Virginia governor and his wife: Governors regularly help local businesses market their products. Virginia’s gift and disclosure laws are notoriously lax.

Still, where Perry’s veto threat and demand for Lehmberg’s resignation were public, the McDonnells’ actions on behalf of businessman Jonnie Williams — and Williams’ lavish “gifts” to the McDonnells — were shielded, at times deliberately, from public view.

Trial testimony has underscored the rapaciousness of the McDonnells’ appetite for cash, private jet services and Ferrari rides, luxury vacations, an engraved Rolex and other favors from Williams, who was seeking state support for his dietary supplement.

Criminal law is a powerful tool for overseeing politicians. Which is why it needs to be used sparingly, and with exquisite care.